However, well-established precedent overwhelmingly supports a party's right to an evidentiary hearing before a finding of contempt ( Boritzer v. Boritzer, 137 AD2d 477; Comerford v Comerford, 49 AD2d 818; Singer v. Singer, 52 AD2d 774; see also Gifford v Gifford, 223 AD2d 669). In Singer, this Court held that "[d]ue process requires that a hearing be held before one can be adjudged in contempt" ( id. at 774), undoubtably because a finding of contempt may result in incarceration as, indeed, it did in this case.
Under New York law, where a party asserts financial inability to pay a prior judgment, he may not be held in contempt and ordered incarcerated without a full evidentiary hearing. Singer v. Singer, 52 A.D.2d 774, 382 N.Y.S.2d 793 (1976); Walker v. Walker, 51 A.D.2d 1029, 381 N.Y.S.2d 310 (1976); Comerford v. Comerford, 49 A.D.2d 818, 373 N.Y.S.2d 148 (1975). As to proceedings to recover a money judgment for arrearages, the requirements are less strict.
that he was entitled to a full evidentiary hearing prior to his contempt adjudication. While defendant improperly reduced the amount of support and maintenance payments (see Brody v Brody, 22 A.D.2d 646; Peters v Peters, 14 A.D.2d 778), such a reduction, without more, did not automatically warrant a finding that defendant was guilty of contempt (see Shkolnik v Shkolnik, 41 A.D.2d 523). Additionally, defendant's averment that plaintiff made certain expenditures without his permission, as required by the judgment of divorce, raises the question whether his failure to pay such expenses impaired or prejudiced her rights (see Schulman v Schulman, 52 A.D.2d 635). Moreover, although defendant's affidavit asserts his inability to pay in conclusory fashion, it is clear that financial ability is essential to a determination of contempt (Pirrotta v Pirrotta, 42 A.D.2d 715; Digilio v Digilio, 22 A.D.2d 701). The deficiencies of defendant's affidavit in this regard should not preclude a hearing (Comerford v Comerford, 49 A.D.2d 818).
The affidavits demonstrated a genuine issue as to whether appellant is able to abide by the terms of the judgment. Due process requires that a hearing be held before one can be adjudged in contempt (Comerford v Comerford, 49 A.D.2d 818; Pirotta v Pirotta, 42 A.D.2d 715; Shkolnik v Shkolnik, 41 A.D.2d 523; see Agur v Wilson, 498 F.2d 961, 965; Vail v Quinlan, 406 F. Supp. 951). Moreover, appellant's income for 1975 may now be determined and, if it is below $15,000, the arbitration provision of the separation agreement should be enforced (Hirsch v Hirsch, 37 N.Y.2d 312; Storch v Storch, 38 A.D.2d 904). Either party should, therefore, have leave to commence arbitration proceedings on a showing that the separation agreement income provisions are applicable to the alimony arrears owed for 1975. Concur — Kupferman, J.P., Lupiano, Birns, Silverman and Nunez, JJ.